On November 26, 1990, Plaintiff, who was then a First Lieutenant, received a performance review from Capt. Dennis Davidson for the four-month period beginning on August 1, 1990 and ending on November 26, 1990 ("Davidson Report"). AR at 396-97. The Davidson Report ranked Plaintiff "3 of 3," indicating he was the poorest performer compared to the two other officers under simultaneous review. AR at 396-97. Despite his low ranking, Plaintiff subsequently earned promotions to captain and then major. AR at 284-87.

On December 3, 1998 the Marine Corps issued Order ("MCO") P1610.7E, which modified the Performance Evaluation System for Marine Corps officers and called for a reduction in grade inflation. MCO P1610.7E, Pl. Ex. 8 (Aug. 25, 2006) [Dkt. No. 44-8]. Shortly thereafter, on August 3, 1999, Plaintiff received a performance review from Col. Francis Scovel for the period covering September 1, 1998 through March 15, 1999 ("Scovel Report"). AR at 584-588. In his review, Col. Scovel indicated that Plaintiff was among the "top 5% of majors [Scovel had] observed in [his] 22 years of service." Id. On the basis of his understanding at the time of MCO P1610.7E, Col. Scovel ranked Plaintiff fifth out of eight, with eight being the highest score possible. Id.

On July 12, 2002, the Commandant of the Marine Corps ("CMC")*fn4 issued a Marine Administrative Message ("MARADMIN") announcing that the Fiscal Year 2004 Lieutenant Colonel Selection Board ("FY 2004 Selection Board") would convene on October 9, 2003. AR at 155. In response to the MARADMIN, Plaintiff submitted an application for promotion to the rank of Lieutenant Colonel. AR at 161-67. Plaintiff was subsequently notified that he was not selected for promotion by the FY 2004 Selection Board. Plaintiff's Statement of Material Facts on Which There is No Genuine Issue ¶ 4 ("Pl.'s Stmt. of Facts") (Aug. 25, 2006) [Dkt. No. 44].

Based on Lt. Col. Crowl's comments, Plaintiff sought to obtain a letter from Captain Davidson to "ameliorate any negative inferences" that could be drawn from the Davidson Report. Pl.'s Stmt of Facts ¶ 10. On April 3, 2003, Plaintiff obtained a letter from Capt. Davidson stating that he "should have ranked [Plaintiff] 1 of 3" in his performance review but failed to do so, for reasons unrelated to Plaintiff's performance. AR at 22. Specifically, Capt. Davidson explained that:

In that report I ranked First Lieutenant McGrady 3 of 3. This was not an accurate ranking. At the time of the report, there was little doubt that First Lieutenant McGrady was the more accomplished officer of the three and I should have ranked him 1 of 3. First Lieutenant McGrady was clearly superior. I ranked First Lieutenant McGrady, who was already a regular officer, behind the other two officers, both of whom were USMCR, in an effort to assist their chances for augmentation.

I also made the "bonehead" assumption that First Lieutenant McGrady had limited aspirations for a career in the USMC and that the other two Officers were focused on a career. I was grossly mistaken in my assumption and live with this poor judgment constantly.

Further, I did not believe that this report, even if First Lieutenant McGrady decided to stay in the Marine Corps, would hinder [his] career as he was certain for promotion and any follow-on assignments would show his superb value to service. I did not believe that my rankings on a transfer report would negatively affect [him].

Id.

Based on Davidson's letter, Plaintiff filed an application to the Board for Correction of Naval Records ("BCNR")*fn5 on May 6, 2003, requesting that Capt. Davidson's 1990 report be corrected to reflect a ranking of "1 of 3" instead of "3 of 3." AR at 186. Acting through the Performance Evaluation Review Board ("PERB"), the CMC recommended that BCNR deny Plaintiff's application to amend the Davidson Report.*fn6 AR at 129-130. On August 26, 2003, BCNR granted Plaintiff's application to modify the Davidson Report. AR at 61.

On September 2, 2003, Plaintiff received a letter from Col. Scovel regarding the Scovel Report ("2003 Scovel letter"). AR at 535-36. Col. Scovel explained that, although Plaintiff was in the "top 5%" of majors, he ranked Plaintiff 5 out of 8 based on the understanding of MCO P1610.7E he had at the time. Id. Col. Scovel also stated that, if he were to evaluate Plaintiff based on current procedures, he would rank him 7 out of 8 instead of 5 out of 8:

When [MCO P1610.7E] was published, a primary goal was to wring inflation out of the performance evaluation system. We were all instructed that Bs and Cs were good marks, and blocks 3 and 4 . . . were fine, as well. When I marked [then] Major McGrady in the 5th block, I believed then that this mark would be viewed as "outstanding" and consistent with a "top 5%" comment. Since then, however, I think inflation has returned, at least to some degree, and the fifth block is now seen as middle of the road. This was not my intent . . . . As I now rank officers, a "top 5%" comment equates to a marking in the 7 block.

Id.

In light of the amended Davidson Report, on September 16, 2003,
Plaintiff requested the Secretary convene a SSB to consider
Plaintiff for promotion to Lieutenant Colonel. AR at 1-23.
While Plaintiff's SSB request was pending,
the FY 2005 Lieutenant Colonel Selection Board ("FY 2005 Selection
Board") considered Plaintiff for a promotion. In connection with that
proceeding, Plaintiff provided the Board with a copy of the 2003
Scovel letter. Pl.'s Stmt. of Facts ¶ 47. On January 6, 2004,
Plaintiff learned that the FY 2005 Selection Board denied his
promotion to Lieutenant Colonel. Id.

On February 16, 2004, the CMC recommended denying Plaintiff's pending SSB request. AR at 28-29. On April 16, 2004, and without further comment, the Secretary adopted the CMC's recommendation and denied Plaintiff's SSB request. AR at 75.

On December 9, 2004, Plaintiff submitted a request to BCNR to amend the Scovel Report to reflect a ranking of "7 out of 8" instead of "5 out of 8." AR at 582-83. On January 28, 2005, CMC, through PERB, recommended denying Plaintiff's record change application, noting that Scovel's performance evaluation was correct at the time it was written and that the 2003 Scovel letter was only an endorsement for promotion and not an official request to change Plaintiff's record. AR at 465-66. On March 22, 2005, Plaintiff responded to PERB's recommendation and requested an SSB based on the FY 2005 Selection Board's consideration of the unamended Scovel Report.*fn7 AR at 472.

On February 7, 2005, Plaintiff submitted a request to the Secretary for reconsideration of the April 16, 2004 denial of his SSB request. AR 34-180. On July 25, 2005, CMC recommended that Plaintiff's SSB reconsideration request be "disallowed." AR at 182-85. On August 17, 2005, Plaintiff filed a Complaint seeking judicial review of the Secretary's denial of his SSB reconsideration request. Although, at the time, the Secretary had not issued an actual decision on Plaintiff's request, Plaintiff argued that the reconsideration request should be "deemed denied" under applicable statutory provisions.

On September 2, 2005, the Secretary, through BCNR, denied Plaintiff's request to amend the Scovel Report and to convene an SSB on those grounds. AR at 651-52. On February 23, 2006, the Secretary denied Plaintiff's SSB reconsideration request. AR Vol. I at 2-3 (certified May 17, 2006).

Plaintiff filed an Amended Complaint on May 11, 2006 [Dkt. No. 34]. On June 21, 2006, Defendants filed an Answer to the Amended Complaint [Dkt. No. 38]. On July 25, 2006, Defendants filed a Motion for Summary Judgment. On August 25, 2006, Plaintiff filed a Cross Motion for Summary Judgment as well as a Memorandum in Opposition to Defendants' Motion for Summary Judgment [Dkt. No. 45]. On October 20, 2006, Defendants filed an Opposition to Plaintiff's Cross Motion for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment [Dkt. No. 49]. On November 13, 2006, Plaintiff filed a Reply to Defendants' Opposition to Plaintiff's Motion for Summary Judgment [Dkt. No. 51].

II. Standard of Review

Judicial review in this case is based upon the APA and 10 U.S.C. § 628, which provides federal courts with jurisdiction to review military agency actions relating to SSBs. Both statutes accord substantially similar levels of deference to military administrative actions. See Homer v. Roche, 226 F. Supp. 2d 222, 225 (D.D.C. 2002) (holding that "the standard adopted by § 628(g) largely echoes that found in the APA").

In reviewing military agency action, a court may set aside a decision if it is arbitrary or capricious, not based on substantial evidence, the result of material errors of fact or a material administrative error, or is otherwise contrary to the law. 5 U.S.C. § 706(2); 10 U.S.C. § 628(g)(1)(A). In conducting its review, the court employs an "unusually deferential application of the 'arbitrary and capricious' standard . . . ." Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). As our Court of ...

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